BORIS JOHNSON’S IMPRUDENT LETTER: irresponsibly fostering misperceptions

The election of two highly qualified UK nationals, Judge Joanna Korner QC and Karim Khan QC, to the roles of Judge and Prosecutor to the ICC respectively, will help serve reform. … As a founder member of the ICC, we have been one of its strongest supporters and continue to respect the independence of the institutions. We oppose the ICC’s investigation into war crimes in Palestine. We do not accept that the ICC has jurisdiction in this instance, given that Israel is not a party to the Statute of Rome and Palestine is not a sovereign state.

Beneath his frat-boy antics, disheveled looks, and bumbling affectations, lies a cunning, calculating, consummate political operator par excellence – even if many of his policies and positions reflect short-term, myopic, tactical jockeying and half-baked ideas. Boris Johnson may have written a (mediocre at best) biography of Winston Churchill, but Winston Churchill he is not. He also seems without a clue as to the concepts of judicial and prosecutorial independence, and that words coming from a Head of State, when imprudent, ill-conceived, and injudicious, create perceptions. Negative ones.

On 9 April 2021, the UK Prime Minister sent a letter to the Conservative Friends of Israel, noting its concerns about the International Criminal Court’s (ICC) recent ruling on the Palestine situation where the Pre-Trial Chamber found that the ICC has jurisdiction to investigate crimes committed in Palestine (see my recent review here). Understandably, the ruling on the Palestine situation has caused a fair amount of consternation or euphoria, depending on where one lines up on the issues involved. The UK had its chance to make amici submissions before the Pre-Trial Chamber. A ruling was issued. To now publicly pressurize the ICC to reverse course (no other way to view Johnson’s remarks), is pure, naked, crude political interference. Continue reading “BORIS JOHNSON’S IMPRUDENT LETTER: irresponsibly fostering misperceptions”

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Book Review: Imagining Justice for Syria

Imagining Justice for Syria, by Beth Van Schaack, Oxford University Press, 2020, 476 pages, £64

It is tempting to conclude that our multilateral institutions do not have the capacity to address tragedies like Syria. However, the fault is not necessarily in the institutions themselves but with those who have the power to act. The law exists, as does a cadre of professionals with the necessary skills and a ready set of justice models; what is lacking is the ability to achieve a political consensus on a path forward, or a willingness to proceed without such a consensus, with respect to situations like Syria, where there has been no regime change, where atrocities are ongoing, and – most importantly – where the great powers find themselves at odds with each other. The long-standing weakness in our system of international justice is made all more pronounced by the situation in Syria.

It has been over a decade since we last went about our daily lives without having to hear about, or see on the news or social media, atrocities being committed in Syria. Just reflect on all that has happened to you since 2011 (what you accomplished at university or work, the events in your personal life, your travels, your joys and your losses), and just imagine what your life would have been like were you to trade all of those memories and experiences for a decade of living in Syria, under or in flight from the Assad Regime, gassed and poisoned, terrorized by the Islamic State of Iraq and the Levant (ISIL), deprived of virtually every human right and human dignity, constantly under fear or on the run, watching loved ones and friends being tortured, maimed, killed, living in refugee camps, crossing dangerous lands and waters in search for safety only to find closed border-crossings by hostile governments, and so on. Continue reading “Book Review: Imagining Justice for Syria”

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THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal    

The Prosecutor should exercise particular caution before agreeing to seek the withdrawal or amendment of charges which have been traditionally under-prosecuted, such as crimes against or affecting children, sexual and gender-based crimes, attacks against cultural, religious, historical and other protected objects, as well as attacks against humanitarian and peacekeeping personnel.

Guidelines for Agreements Regarding Admission of Guilt, October 2020, para. 20

Some four years after Al Mahdi’s guilty plea was accepted based on an agreement reached with the Prosecutor for a nine-year sentence for one count of destruction of cultural heritage (mausoleums and mosques in Timbuktu) – and no other charges such as killings for which there seemed to be sufficient evidence to charge (see my prior posts here and here) – the Office of the Prosecutor (OTP) issued its Guidelines for Agreements Regarding Admission of Guilt (Guidelines) on 12 November 2020. Why now? It is not as if plea agreements have been a much sought-after commodity by the OTP. Lamentably.

The Guidelines are somewhat wanting. More of a basic policy paper for internal use and a PR piece for external purposes, the Guidelines provide vague “guidance” on whether, when, under what circumstances and subject to which terms the OTP will enter into plea agreements. Rather than drilling down on the specifics of the Guidelines (a pithy seven-pages), I will be providing some practical considerations and guidance for a more robust practice in negotiating plea agreements. But first, some prefatory remarks on why “plea bargaining” is misunderstood and gets a bad rap at the international(ized) criminal tribunals and courts.  Continue reading “THE ICC PROSECUTOR’S GUIDELINES ON PLEA AGREEMENTS – let’s make a deal    “

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A Pragmatic Assessment of the Pre-Trial Chamber’s Ruling on the ICC’s Territorial Jurisdiction in Palestine: membership comes with privileges, not just responsibilities

The Chamber notes that Palestine acceded to the Statute in accordance with the procedure defined in article 125(3) of the Statute. On 2 January 2015, Palestine submitted its instrument of accession to the Statute, and became a State Party to the ICC on 1 April 2015, following the entry into force of the Statute in its territory. The United Nations Secretary-General circulated Palestine’s instrument of accession among the States Parties before accepting it and no State Party, except for Canada, manifested any opposition at the time. Palestine’s accession was subsequently accepted by the United Nations Secretary-General on 6 January 2015 and, on 1 April 2015, the then President of the Assembly of States Parties to the Rome Statute (the ‘Assembly of State Parties’) greeted Palestine in a welcoming ceremony, which ‘marked the entry into force of the Rome Statute for the State of Palestine […] thereby becoming the 123rd State Party’…. Moreover, since its accession, Palestine has contributed to the Court’s budget and has participated in the adoption of resolutions by the Assembly of State Parties.1 Situation in the State of Palestine, ICC-01/18-143, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine,’ 5 February 2021, para. 100 (footnotes omitted).

Stripped from the politics, the lobbying, the bellicose threats, and the doomsday rhetoric surrounding the Prosecutor’s request pursuant to Article 19(3) of the Rome Statute for a ruling on the Court’s territorial jurisdiction in Palestine, the ruling by Pre-Trial Chamber I should not have come as a surprise. If considered pragmatically.

Anyone interested in the nitty-gritty of the Pre-Trial Chamber’s ruling should carefully pour over the majority and minority views spanning over 230 pages. There are also hundreds of pages of submissions and amici curiae briefs for anyone wishing to chase this ruling down the rabbit hole. As for further elucidation of this ruling and its significance, there are plenty of press releases, cautionary statements, and outright threats by the former Trump Administration in the US (as well as the Biden Administration’s objection to the ruling), easily found by surfing the internet. Continue reading “A Pragmatic Assessment of the Pre-Trial Chamber’s Ruling on the ICC’s Territorial Jurisdiction in Palestine: membership comes with privileges, not just responsibilities”

Footnotes[+]

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Peering through snow in The Hague

My backyard this past weekend

This weekend I found myself shoveling more snow than I have since my public defender days in Alaska.  As I put my feet up and warmed my weary bones, I re-read a piece my friend Alan Yatvin wrote after getting caught in the snow here in The Hague three years ago.  I was reminded of the vivid picture he painted of that experience, and his ruminations on the legacy of the ICTY.  I also longingly recalled that which Alan kindly omitted — that I had abandoned him and was then enjoying much more salubrious weather in Phnom Penh.  So for those of you, like me, trudging through the snow this weekend, here is a taste of an earlier storm, with a link to the whole essay.  Stay warm.

A snowy December night in The Hague

I was in The Hague for a meeting of the Association of Defense Counsel at the International Courts (ADC-ICT).  This was my last day in The Netherlands before heading home and it was snowing.

Winter Landscape with Skaters by Hendrick Avercamp

With images of Hendrick Avercamp’s impish 17th century paintings and childhood memories of Hans Brinker, or the Silver Skates (book and movie) dancing in my head, I set out for the “centrum” to fill the last afternoon of my vacation.  However, that snowy, frozen canal climate is long gone from this country.  Unused to so much snow in a short period of time the Dutch city was, if not paralyzed, substantially slowed down.

After wandering around mostly deserted streets, I headed for the oh-so-convenient bus whose route dropped me practically at the door of the home of my friend Michael Karnavas, where I was staying.  Over the next hour, it finally dawned on me that despite the illuminated boards assuring that the bus was 9 minutes, then 4 minutes, then 1 minute away, before disappearing from the board altogether, the buses had ceased running.  So, I caught the tram to the beach, which I knew stopped behind the building housing the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) a 10 minute walk from my lodgings.

As I walked back, I stopped by the Churchillplein fountain, in front of the Tribunal, to reminisce and contemplate its impending closing.

Click here to read the rest.

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ICC Judges Yield to the Experts’ Recommendations in Amending the Code of Judicial Ethics: a welcomed but modest tinkering to an otherwise impressionistic code of conduct

From the Experts’ consultation process, this lack of collegiality is said to have manifested itself in a variety of ways: poisonous relations, both judicial and personal, following the elections of the Presidency; public expressions of the lack of respect by a Judge towards other Judges; limited Chamber deliberations; excessive adherence and devotion to a Judge’s own legal system; very late circulation of draft written decisions; infrequent intra-Chamber and Intra-Division communications; existence of cliques, factions or open friction among Judges; lashing of disparaging comments on colleagues on the issuance of decisions; deliberate snubbing of associates; persistent failure to reach unanimity; and non-communication.

Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report, 30 September 2020, para. 463.

In 2005, the ICC Judges adopted what may have been considered back then a groundbreaking Code of Judicial Ethics. Groundbreaking not for its contents, but rather for drafting and adopting a code that was to be “advisory in nature and have the object of assisting judges with respect to ethical and professional issues with which they are confronted” (Art. 11.1). Perhaps because the code was merely seen as advisory, its significance, or better yet, its obligatory nature was unacknowledged  – at least by some of the judges.Codes of judicial ethics regulate the judiciary by providing guidance on the judges’ duties, responsibilities, and conduct towards other judges, the parties, witnesses, staff, and the judicial institutions – courts and tribunals. When providing clear and definitive rules governing the judges’ behavior, codes of judicial ethics effectively legislate, whereas when merely providing vague guidance with nebulous and undefined terms, they tend to be susceptible to mailable interpretations, equivocation, inconclusiveness, and ill-compliance. Of course, devising detailed rules for every ethical eventuality a judge is likely to encounter is unrealistic. Judicial canons should be pithy, expressing general principles. Preferably, they should also be accompanied by detailed prescriptive and proscriptive provisions that flush out the canons, and a commentary informing the object and purpose of the canons.

The ICC Code of Judicial Ethics provides no commentary but does merge canonical principles with more fleshed out provisions. Overall, it is a useful Code – at least to career judges and experienced litigators (prosecutors and lawyers) who arrive at the ICC to don the judicial two-toned blue robe. Even for those with prior national experience (who far too often are prisoners of their own legal system), a code that is scant in guidance, inexact in the meaning of terms, and lacking explanatory comments, will be appreciated and applied through their provincially narrow perspective. And it is not just the Code that is interpreted in this fashion – it cuts across all aspects of judges’ interpretation and application of statutory provisions, rules, and regulations. Not to mention their interactions with their colleagues and others. That’s where collegiality comes in. Continue reading “ICC Judges Yield to the Experts’ Recommendations in Amending the Code of Judicial Ethics: a welcomed but modest tinkering to an otherwise impressionistic code of conduct”

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POSTSCRIPT — DAVID PERRY QC DOES VOLTE-FACE: wise move or fainthearted retreat?

I understand in the case of Mr. Perry, in relation to the pro-democracy activists, and of course from Beijing’s point of view, this would be a serious PR coup.… Frankly, I think people watching this would regard it as pretty mercenary to be taking up that kind of case.

Dominic Raab, British Foreign Secretary

Raab owes Perry an unreserved apology. His remarks are not only foolish, but also flawed: they smack of grandstanding, rather than reason.… In the best tradition of the English Bar, Perry will be scrupulously fair at trial and he will ensure that there is a just outcome.

Grenville Cross QC, Former Hong Kong Director of Public Prosecutions

As I was posting my piece on David Perry QC accepting the brief to prosecute Hong Kong pro-democracy demonstrators, Perry withdrew from the case. The Hong Kong Government explained that “growing pressure and criticism from the UK community directed at Mr. Perry QC” and “the exemption of the quarantine” were the causes for his withdrawal.

Unfair pressure, crisis of conscience, realization of folly, economic considerations, or ridding of grief? Take your pick. One thing for sure, the claim that Perry’s withdrawal was due to quarantine issues doesn’t pass the smell test. Continue reading “POSTSCRIPT — DAVID PERRY QC DOES VOLTE-FACE: wise move or fainthearted retreat?”

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British QC Agrees To Prosecute Hong Kong Pro-Democracy Activists: Should it matter?  

I know how you feel. You don’t believe me, but I do know. I’m going to tell you something that I learned when I was your age. I’d prepared a case and old man White said to me, “How did you do?” And, uh, I said, “Did my best.” And he said, “You’re not paid to do your best. You’re paid to win.” And that’s what pays for this office … pays for the pro bono work that we do for the poor … pays for the type of law that you want to practice … pays for my whiskey … pays for your clothes … pays for the leisure we have to sit back and discuss philosophy as we’re doing tonight. We’re paid to win the case. You finished your marriage. You wanted to come back and practice the law. You wanted to come back to the world. Welcome back.

Ed Concannon, The Verdict (1982)

Show me an advocate who has nothing to prove and I’ll show you an advocate who proves nothing. Kid yourself not, it is all about winning, especially in common law proceedings. No one hires a lawyer to just do his or her best; they want the lawyer to win the case. This also goes for prosecutors. No supervisor or hiring authority wants to hear from their prosecutor that the case was lost but justice was done. The presumption for going forward with the prosecution is that the cause is righteous, and the accused is guilty. Continue reading “British QC Agrees To Prosecute Hong Kong Pro-Democracy Activists: Should it matter?  “

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The ICC-ASP Independent Expert Review: Scrutinizing the past / proposing the future

Inherent in the structure of any international court or tribunal is the dual nature of the institution: the ICC is both a judicial entity (ICC/Court) and an international organisation (ICC/IO). As a judicial entity, the Court must benefit from judicial independence. As an international organisation, States Parties reasonably expect to be able to guide and shape the institution. Contradictions can arise between the two attributes of the ICC, and in practice such differences have led to tension between the ICC and the ASP. Whereas the dual nature of the ICC cannot be changed, employing this distinction can improve the clarity of reporting lines and improve cooperation.

Independent Expert Review of the International Criminal Court and the Rome Statute System, Final Report (IER), 30 September 2020, para. 26 (internal citations omitted).

Since we are starting a new year, it may be good to reflect on the 2020 Independent Expert Review (IER) of the International Criminal Court (ICC) and the Rome Statute System, commissioned by the Assembly of States Parties (ASP):

with a view to making concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole, taking full account of the working languages of the Court, and submit those to the Assembly and the Court for consideration.1 Review of the International Criminal Court and the Rome Statute System, ICC-ASP/18/Res.7 (2019), para. 6.

Hemingwayesque in prose (modestly adorned short, plain sentences), Tolstoyesque in length (War and Peace in size and discordance), and Trumanesque in bluntness (unvarnished, curt, straight-talk), the final report of IER of the ICC is a dark, disenchanting, dispiriting read. But a must-read, nonetheless. Anyone currently working or hoping to work at the ICC, anyone working in any of the international(ized) criminal courts or tribunals, and anyone involved in establishing or aspiring to establish any future such courts, would be well served to carefully review and reflect on this report. Continue reading “The ICC-ASP Independent Expert Review: Scrutinizing the past / proposing the future”

Footnotes[+]

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JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)

It is with great relief to observe that the Pre-Trial Chamber reverses the prior order of the Co-Investigative Judges of 8 December 2009 that held JCE III applicable in relation to international crimes before the ECCC…. By the same token, the Pre-Trial Chamber declares JCE I and JCE II applicable before the court in regard to international crimes…. In doing so, the court omits to scrutinize the necessity to give these recognized forms of liability under international criminal law and in particular universal state practice law new labels.

Judge Wolfgang Schomburg1  Jurisprudence on JCE – Revisiting a Never Ending Story 

 

Just as in the Wizard of Oz, when Dorothy discovers there is no wizard behind the curtain, the Pre-Trial Chamber Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – rebuffing the wizardry behind the curtain by thoroughly analyzing the law and jurisprudence relied on by the Tadić Appeals Chamber (and parroted by successive chambers at the ad hoc tribunals) – discovered that JCE III, founded on unsupportive and unpersuasive legal authority, did not enjoy customary international law (CIL) status. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)”

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